Monday, September 8, 2008

More on McCain: Solum on Originalism and the Natural Born Citizen Clause

Originalism and the Natural Born Citizen Clauseby Lawrence B. Solum, University of Illinois, is the latest in a string of essays on John McCain's citizenship at birth, and therefore his eligibility to be president. Solum's focus is the contribution of originalism to an understanding of the citizenship clause in Article II, Section 1 of the Constitution: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." Essays with different takes on the relevant statute providing citizenship for children of U.S. citizens born abroad are noted here and here. Solum's abstract follows:

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." John McCain's citizenship was conferred by statute - perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone - neither clearly naturalized nor natural born.

This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism - the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism - the phrase "natural born citizen" may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a "term of art," in particular, the idea that the meaning of "natural born citizen" derives from the English concept of a "natural born subject." Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.